IPBiz

Thursday, May 31, 2012

Frontline frenzy at CAFC

we conclude that (1) the 2008 default judg- ment against Cipla rested on a valid exercise of personal jurisdiction; (2) the district court did not abuse its discretion by declining to stay the contempt proceedings in view of the then-pending Delaware action; (3) the district court did not clearly err in determining that PetArmor Plus infringes the ’329 patent and is not more than colorably different from Cipla’s previously enjoined Protektor Plus product; (4) Cipla’s extraterritorial role in the development, production, and ultimate U.S. sale of PetArmor Plus violated the district court’s injunction against in- duced infringement of the ’329 patent; (5) Velcera’s actions bringing PetArmor Plus to market in concert with Cipla qualified as contemptuous conduct despite its status as a non-party to the 2008 default judgment; and (6) the district court did not abuse its discretion in prohibiting further sales of PetArmor Plus.

CAFC in Mintz v. Dietz & Watson: The mere recita- tion of the words “common sense” without any support adds nothing to the obviousness equation

The outcome of Mintz v. Dietz and Watson was This court affirms the non-infringement determination and vacates the invalidity holding with a remand to the district court for further proceedings. Patent claim invalidity through obviousness was vacated, and the use of KSR "common sense" was trimmed back a bit. Separately, Chief Judge Rader made strong statements about the need to consider objective indicia of non-obviousness.

Of obviousness, the CAFC started with basics:

Under 35 U.S.C. § 103, a patent claim is invalid as obvious “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” This statutory test requires factual inquiries: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed invention and the prior art; and (4) objective evidence of nonobviousness. Eli Lilly & Co. v. Teva Pharm. USA, Inc., 619 F.3d 1329, 1336 (Fed. Cir. 2010).

There was an immediate problem with the analysis by the district court:

In this case, the prior art, the problems giving rise to the invention, and the invention itself featured the meat encasement art. The district court, however, discounted the importance of familiarity or experience with meat products. Instead, the district court opined that the person of ordinary skill would have familiarity with the knitting art but no familiarity with the meat encasing art. Without some understanding of meat and meat encasement technology in various settings, the artisan of ordinary skill would not grasp many aspects of the invention. Therefore, entirely omitting the meat encasement art led the validity search astray.

As to the use of common sense:

The district court made a clear error, however, in its unsubstantiated reliance on “a common sense view” or “common sense approach” to hold that it would have been “obvious to try” a locking engagement. The mere recitation of the words “common sense” without any support adds nothing to the obviousness equation. Within the statutory test to determine if a claimed invention has advanced its technical art field enough to warrant an exclusive right, “common sense” is a shorthand label for knowledge so basic that it certainly lies within the skill set of an ordinary artisan. With little more than an invocation of the words “common sense” (without any record support showing that this knowledge would reside in the ordinarily skilled artisan), the district court overreached in its determination of obviousness.

At this juncture, the district court’s reliance on the perspective of an artisan in the knitting arts is especially problematic. The basic knowledge (common sense) of a knitting artisan is likely to be different from the basic knowledge in the possession of a meat encasement artisan. Moreover, the district court emphasized that the problem in the prior art was merely forming a checkerboard or grid-like pattern. To be specific, the district court erroneously phrased the issue as whether it would have been obvious to simply “fix each point of intersection” of each strand in order to solve that problem.

This statement of the problem represents a form of prohibited reliance on hindsight. The district court has used the invention to define the problem that the invention solves. Often the inventive contribution lies in defin- ing the problem in a new revelatory way. In other words, when someone is presented with the identical problem and told to make the patented invention, it often becomes virtually certain that the artisan will succeed in making the invention. Instead, PCM must prove by clear and convincing evidence that a person of ordinary skill in the meat encasement arts at the time of the invention would have recognized the adherence problem recognized by the inventors and found it obvious to produce the meat en- casement structure disclosed in the ’148 patent to solve that problem.

Chief Judge Rader wrote in detail about objective indicia of non-obviousness, including the text:

These objective guideposts are powerful tools for courts faced with the difficult task of avoiding subconscious reliance on hindsight. See Crocs, Inc. v. ITC, 598 F.3d 1294, 1310 (Fed. Cir. 2010) (Objective indicia “can be the most probative evidence of non-obviousness in the record, and enable the court to avert the trap of hindsight.”). These objective criteria help inoculate the obviousness analysis against hindsight. The objective indicia “guard against slipping into use of hindsight and to resist the temptation to read into the prior art the teachings of the invention in issue.” Graham v. John Deere Co., 383 U.S. 1, 36 (1966). This built-in protection can help to place a scientific advance in the proper temporal and technical perspective when tested years later for obviousness against charges of making only a minor incremental improvement. “That which may be made clear and thus ‘obvious’ to a court, with the invention fully diagrammed and aided by experts in the field, may have been a break-through of substantial dimension when first unveiled.” Uniroyal, Inc. v. Budkin-Wiley Corp., 837 F.2d 1044, 1051 (Fed. Cir. 1988).

These objective criteria thus help turn back the clock and place the claims in the context that led to their inven- tion. Technical advance, like much of human endeavor, often occurs through incremental steps toward greater goals. These marginal advances in retrospect may seem deceptively simple, particularly when retracing the path already blazed by the inventor. For these reasons, this court requires consideration of these objective indicia because they “provide objective evidence of how the patented device is viewed in the marketplace, by those directly interested in the product.” Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1391 (Fed. Cir. 1988); see also Spectralytics, Inc. v. Cordis Corp., 649 F.3d 1336, 1344 (Fed. Cir. 2011) (“The objective considerations reflect the contemporary view of the invention by competitors and the marketplace.”); Continental Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1273 (Fed. Cir. 1991) (“The significance of a new structure is often better measured in the marketplace than in the courtroom.”); Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1143 (Fed. Cir. 1985) (“Recognizing the difficulty of casting one's mind back to the state of technology at the time the invention was made, courts have long recognized the usefulness of evidence of the contemporaneous attitude toward the asserted invention. A retrospective view of the invention is best gleaned from those who were there at the time.”). Obviousness requires a court to walk a tight- rope blindfolded (to avoid hindsight) — an enterprise best pursued with the safety net of objective evidence.

Wednesday, May 30, 2012

Derivative plagiarism

One day later, Journal of Modern Physics took down another article under the duo's names, Studying Cosmological Time Variability of the Fine-Structure Constant from the Analysis of Quasar Spectra, as substantial portions of the text came from Thong’s former writing that had been retracted by another journal, due to plagiarism.

Also within the article:

He reveals that Thong even confidently announced he had invented a brand new method in this field, which he named after himself – the ‘Thong Method’ – and has recently been deemed “wrong” by Prof Pierre Darriulat, a leading French physicist who has been a corresponding member of the French Academy of Sciences since 1986 and is now working at the Hanoi University of Science.

He [Thong] quit the institute upon its request two years later, following the organization’s reception of notifications of his plagiarism from several international journals.

Three of the five scientists, including Dr Giao and Thong’s wife, who were named co-authors of the plagiarized papers have recently asserted that the researcher had added their names to the articles without their approval. The other two have yet to give any comment on this plagiarism case.

He had done so without their consent, Thong admitted, further explaining he gave them credits because they had made major contributions to the retracted papers.

Dr Giao was given co-authorship simply because he was his instructor then, Thong noted.

“He actually gave me no guidance or instruction at all,” Thong said.

Dr Giao was a liar when saying that Thong had used the instructor’s email for personal purposes in a recent interview with Tuoi Tre, he added.

The plagiarist also revealed that he had had one more article retracted by another international journal in 2009, apart from the above seven.

Crowdfunding; kickstarter

One of the best-known platforms isKickstarter, which generally features projects that are creative in nature – musicians seeking to record an album, for example, or inventors pursuing an idea.

AND

Crowdfunding has drawn its share of criticism. Somearguethat it is biased in favor of trendy projects (people are more likely to support polar bear research than cyanobacteria research) and that the projects seeking funds have not been peer-reviewed.

IPBiz notes that a problem with peer-review itself is that it can re-enforce the status quo; a new idea is judged against what a peer knows of prior art. There can also be conflict of interest.

Admittedly Arizona is on an inside track with location, backing it up now with fair treatment for tax purposes and from Dr. Edwards a load of common sense. “I and others have been lobbying for something like this for almost three years now. Whether the water is running around a raceway, or bubbling in a vertical column, this is in fact agriculture — we’re farming in water,” says Dr. Edwards.

“This legislation, really, is an enabler. It makes algae production in Arizona more business-friendly. It will also help farmers engage in the algae industry, because they’re going to start thinking about using algae to remediate their manure and their waste streams,” Edwards adds.

AND

Florida is in part, listening. New energy legislation in the state of Florida became law April 14 despite Florida Gov. Rick Scott’s failure to sign the bill. The legislation, HB 7117, contains several measures aimed to encourage the development and expansion of the renewable energy sector within the state, including biofuels production and distribution. The bill also addresses policies and restrictions for growing certain strains of algae and cyanobacteria.

Tuesday, May 29, 2012

3M v. Mohan: example of poorly executed pro se case

As the accused infringer, Mohan was required to present clear and convincing evidence of invalidity to overcome this presumption. Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 962 (Fed. Cir. 2001). Mohan relied solely on his own testimony that a turkey baster anticipates the ’865 patent and that the claims of the ’865 patent were obvious in view of a door hinge, eye dropper, gears, toilet plunger, and a toothbrush. Appellee App. 0160. Mohan failed to show that these items disclose or render obvious elements of the asserted claims or that any of these asserted de- vices would be considered pertinent by one of ordinary skill in the art. Mohan’s conclusory assertions of patent invalidity do not raise a genuine issue of material fact sufficient to defeat summary judgment. Applied Cos., 144 F.3d at 1475. Therefore, this court affirms the district court’s finding that the ’865 patent was not invalid.

Things did not go well for the pro se defendant in the trademark area either:

Similar evidentiary infirmities plague Mohan’s appeal on trademark validity. The district court found 3M’s marks to be suggestive, requiring some imagination to connect the marks, “CARDIOLOGY III” and “MASTER CARDIOLOGY,” with stethoscopes. See Frosty Treats Inc. v. Sony Computer Entm’t Am. Inc., 426 F.3d 1001, 1004- 05 (8th Cir. 2005) (“Suggestive marks, which require imagination, thought, and perception to reach a conclu- sion as to the nature of the goods . . . are entitled to protection regardless of whether they have acquired secondary meaning.”).

(...)

Regarding trademark infringement, 3M was required to show that there was a likelihood of confusion between its marks and Mohan’s marks. See 15 U.S.C. § 1125(a).

(...)

The district court evaluated each of the SquirtCo factors, and the record supports its ultimate finding of trademark infringement based on the likelihood of confu- sion between 3M’s marks and Mohan’s marks. 3M pre- sented evidence of confusion between the two marks including survey data among nurses and doctors showing a likelihood of confusion of 42 percent. 3M also presented emails between consumers and Mohan in which Mohan apologized for confusion regarding the source of the goods. See 3M II, 2010 WL 5095676, at *21-22. While Mohan challenges the fairness and quality of the survey data, he has not presented any evidence supporting these chal- lenges. Mohan raised similar arguments at trial, and the district court found that “the survey was not substantially flawed, and is accorded substantial weight.” See id. Mohan’s arguments on appeal do not highlight error sufficient to overturn this finding.

Also, as to a jury demand

Furthermore, 3M was not required to obtain Mohan’s consent in order to withdraw its jury demand because Federal Rule of Civil Procedure 38 does not apply when a party decides to proceed only on equitable claims. See Tegal Corp. v. Tokyo Electron Am., Inc., 257 F.3d 1331, 1341 (Fed. Cir. 2001). Thus, the district court’s finding of trademark infringement and resulting permanent injunc- tion did not violate Mohan’s Seventh Amendment right to a jury trial.

Monday, May 28, 2012

Cummins-Allison prevails over SBM at CAFC

The outcome

In this appeal, the parties challenge several of the dis- trict court’s infringement and invalidity holdings, and Amro and SBM claim that the damages award should be set aside. We uphold the damages award and affirm the district court’s denial of JMOL as to the validity of the asserted claims of the ‘806 and ‘503 patents and the infringement of Claim 15 of the ‘503 Patent. However, we reverse the district court’s grant of JMOL of anticipation of Claim 55 of the ‘354 Patent because substantial evi- dence supported the jury’s verdict. We have considered the parties’ other arguments made on appeal and find that they provide no basis for relief.

As to JMOL:

JMOL is appropriate when “a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1). “In determining whether a reasonable jury would have a legally sufficient evidentiary basis for the facts as found, we must presume that the jury re- solved all factual disputes in favor of the prevailing party, and we must leave those findings undisturbed so long as substantial evidence supports them.” Cordis Corp. v. Boston Sci. Corp., 658 F.3d 1347, 1358 (Fed. Cir. 2011).

As to anticipation:

Anticipation under 35 U.S.C. § 102 is a question of fact, and a jury determination of anticipation is reviewed for substantial evidence. ClearValue, Inc. v. Pearl River Polymers, Inc., 668 F.3d 1340, 1343 (Fed. Cir. 2012); 3M v. Chemque, Inc., 303 F.3d 1294, 1301 (Fed. Cir. 2002). Substantial evidence, however, requires more than a mere scintilla; rather, it is such relevant evidence as a reason- able mind might accept as adequate to support a conclu- sion. In re Kotzab, 217 F.3d 1365, 1369 (Fed. Cir. 2000) (citation omitted). The court must review the record as a whole, but the mere fact that it may be possible to draw two inconsistent conclusions from the record does not lead to the conclusion that substantial evidence does not support the jury’s determination. Id.

Here, a priority date, and written description were at issue:

A claim is entitled to priority from the filing date of an earlier filed application, but only if the earlier filed appli- cation describes the subject matter of the claim as re- quired by § 112. 35 U.S.C. § 120. Section 112 requires a patent specification to contain a “written description of the invention and the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.” 35 U.S.C. § 112. Thus, if the later filed application’s claims are not set forth in the earlier filed application with the specificity that § 112 requires, the later filed application cannot claim the earlier filing date for those claims. 35 U.S.C. § 120.Compliance with the written description requirement is a question of fact. See Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). To satisfy the written description requirement, a patent’s specification must reasonably convey to a person having ordinary skill in the art that the inventor had possession

of the later-claimed subject matter as of the earlier filing date. Id. While the earlier filed application need not describe the later filed claims verbatim, a description that merely renders the later filed invention obvious is insuffi- cient. Id. at 1352.

In proper circumstances, drawings alone may provide an adequate written description under § 112 if they describe what is claimed and convey to those of skill in the art that the patentee actually invented what is claimed. Cooper Cameron Corp. v. Kvaerner Oilfield Prods., 291 F.3d 1317, 1322 (Fed. Cir. 2002) (internal citation omitted); see also Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991). In cases involving dimensions, the test is whether one skilled in the art could derive the claimed dimensions from the patent’s disclosure. Vas-Cath, 935 F.2d at 1566 (citation omitted).

The disagreement between the district court and the CAFC:

The jury found that Claim 55 of the ‘354 Patent was not anticipated by the JetScan 4062. However, the dis- trict court disagreed and granted JMOL. Specifically, the district court found that the ‘854 Application and ‘259 Patent do not describe or discuss the specific dimensions in Claim 55, and the figures contained therein do not show the dimensions. The district court stated that “pat- ent drawings do not define the precise proportions of the elements and may not be relied on to show particular sizes if the specification is completely silent on the issue.” (citing, inter alia, Hockerson-Halberstadt, Inc. v. Aria Gr. Int'l, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000)). Cummins- Allison moved for reconsideration, and the district court denied the motion.We disagree with the district court’s reliance on Hock- erson-Halberstadt.

AND

Because these examples of dimensions could be used to “scale” the relevant figures and deduce dimensions from them, the district court erred in concluding that Claim 55 was not entitled to the March 1995 priority date. Substantial evidence supported the jury’s determi- nation because a person having ordinary skill in the art could have deduced the dimensions from a review of the language in the specification and the drawings them- selves. Therefore, the jury verdict should have been upheld, and we reverse.7

Sunday, May 27, 2012

"60 Minutes" on May 27, 2012: veterans remember/remembered

In the second story, Mat Bradford is interviewed in the context of Operation Proper Exit. "No means go." Ed Salow is also interviewed. Rick Kell heads Troops First Foundation. Pelley joined the ninth Proper Exit visit. An opportunity to see what benefits were gained in Iraq. I saw people looking to their government for solutions. Steven Cornford, injured 4/4/2007, re-visited the site of his injury. The enemy was retreating from the battlefields of their minds.The story originally aired November 6, 2011.

CBS Sunday Morning on May 27, 2012

Charles Osgood introduced the stories for CBS Sunday Morning on May 27, 2012. We mark Memorial Day, a holiday with a dual significance. Mark Strassman does the cover story on the American highway. With billions of dollars needed for repair, a bumpy road ahead. Lee Cowan interviews Jimmy Johnson, Indy car driver. Third, Philip Seymour Hoffman interviewed by Mo Rocca. Fourth, Steve Hartman gives story of Dustin Gross. Chip Reid, Anthony Mason, Dave Edelstein (sadly repeated a second time by Osgood). News: Paktia Province in Afghanistan. Deaths in Syria. Subtropical strom Beryl. Wildfire in the west. Lady Gaga canceled performance on June 3 in Indonesia. Doc Watson in critical condition. Weather: Rain and 80's in the east.

Strassman on "Hit the Road!" begins with congested highways. The original highways were elk and buffalo trails. Earl Swift, author of Big with Roads. New York to Philadelphia, a two day trip. February of 1938: 6 lines, 3 north-south, 3 east-west. In the 1950s, Eisenhower gave green light. In 1956, construction began on 47,000 mile interstate system. Interstates modeled on autobahns of Hitler's Germany. Design for Dreaming (1956). Federal gas tax 18.4 cents per gallon. Katherine Ross is a professor at Georgia Tech talks about highway funding crisis. It's beyond urgent. DoT says it needs 100 billion per year. Victor Mendez runs Federal Highway Administration. Census Bureau says 86% of people commute by car. In Houston, Jack Bailey doing TransStar program, which costs 26 million to operate, re-routing drivers around congestion. Also, pay extra for less congested toll lane. Sometimes you have to pay to keep what you have. 9% of people say they get stuck in traffic every day.

Almanac. May 27, 1937: Golden Bridge opened to public (pedestrians only, on first day). Jan. 1933 was beginning of construction. In 1983, Kuralt interviewed workers. A mile 2/3 shore to shore. International orange is the color. Movie Vertigo. Celebrations go on: fog or shine.

Anthony Mason on photographs by Bob Gruen, with music of Blondie in the background. Picture of Led Zeppelin that sums up the excess of the 1970s. Gruen took picture of Dylan in 1965. Debbie Harry shows up in the story; met Gruen in the early 1970s. Picture of Debbie in 1976. Book: Rock Scene. Lennon pictures on E. 52nd St in 1974. New York City tee shirt. Issue of copyright infringement: a compliment that they steal the picture over and over again. Picture of John Lennon by the Statute of Liberty in 1974. Peace and freedom. Pictures of The Clash. Ike and Tina Turner. New York Dolls, Elton John, The Who, The Ramones.

Philip Seymour Hoffman currently in "Death of a Salesman." Mo Rocca interviews Hoffman has clips from Doubt and Moneyball and Chalie Wilson's War. Almost Famous. Role of Truman Capote. Fairport, NY. First onscreen in Law & Order. Most people in real life don't look "put together." Boogey Nights was a breakout for Hoffman. Freddie Miles in The Talented Mr. Ripley. The Savages. Mimi O'Donnell. I just want to work with people who are striving to do something really well.

Chip Reid on Louis Zamperini. Five torches. US 328th Regiment. Book by Laura Hillenbrand "Unbroken."
On this day, his B-24 crashed (May 27, 1943). 1994 story by Bob Simon. Taken to Execution Island. A guard nicknamed The Bird. He was on This is Your Life. Joined a prayer service by Billy Graham. 61 years ago he forgave his guards. Book "Unbroken" made him a celebrity all over again. Laura has chronic fatigue syndrome.

John Miller on Etan Patz. 1985 Charles Kuralt introduced Etan Patz story. Better ways to find stolen cars than to find missing children. Pedro Hernandez, as 18 year old, in 1979. Father Stan (then age 38) and Mother Julie spoke about child Etan on CBS Sunday Morning. An adult could have convinced him to do something. 113 Prince Street. Jose Lopez called police with a tip.

Nascar star Jimmy Johnson interviewed for Sunday Profile by Lee Cowan. Only driver in NASCAR to win five straight championships. Best Man Cave Ever in Charlotte, NC. Forbes named him most influential sportsmen. Got a dirt bike at age four; started racing at age five. Wreck at Watkins Glen, NY in year 2000. Hendrick Motor Sports. On average, go through 12 - 15 vehicles per season. Works with "Make a Wish" Foundation. Story about Dale Earnhart, Jr.

Words of caution from Fast Draw. Happiness comes before a vacation. Anticipation. Imaginary kiss from celebrity desired three days in the future. Anticipating something is where you have great joy.

Larry Eckhardt (property manager at Little York, Illinois) featured on Hero's Welcome; Dustin Gross.
Larry featured in Dubuque Telegraph Herald. This story involved the 86th funeral attended by Larry. A story by Steve Hartman.

Next week: interview with Jane Fonda.

Moment of Nature by Pradaxa. Montezuma National Wildlife Refuge in upstate New York with eaglets.

Thursday, May 24, 2012

"Awake" series finale on May 24, 2012

An injured Michael Britten enters the home of John Lee (B.D. Wong). The shot in his addomen went all the way through. Hawkins did it. In the other life, Castle killed himself. Britten: I am not the bad guy here. Lee (Wong): You have been keeping track of two sets of realities. Britten to Wong: you are going to turn me in. There's 200 kilos in one of the storage units. But it's not there. Wong is put in the storage unit. "They are saying you shot Bird." Britten: Ask Harper to get the phone records of Hawkins and Castle.

Detective Vega meets Dr. John Lee (B.D. Wong). Lee: I understand how convincing Michael Britten can be. He is a man suffering a complete mental break. A recipe for fluorishing delusions. He killed Detective Freeman. We need to prevent him from hurting anyone else. Britten is captured. Placed in the LA County Jail. He talks to Tricia Harper. Tricia says Hannah will be taken care of. Phone call from Ed Muntz, an alias for Castle. To Tricia: You killed Rex; you killed my boy. Britten tries to strangle Harper in the cell, but is pulled off and taser'd.

In the next segment, Britten is shown in the cell. Then, "you have a visitor." It's Britten in a suit. Suit: you know what I want. We have to get Harper. The clock is ticking. You understand. She's getting away. But we can still stop her. You have to be sure. Suit Britten hangs up. The door opens for jailed Britten. Jailed Britten walks down a corridor. Lee and Dr. Judith Evans appear. Lee to Evans: you don't exist. The two doctors argue. Jailed Britten says "shut up," and the two doctors disappear. Jailed Britten opens a heavy door to a bright light. Jailed Bitten overlooks Harper in a motel room. Harper kills the man, but leaves an imprint of her high heel in the carpet. Vega is in a penguin costume talking to jailed Britten. Jailed Britten meets his wife. Just give me one last kiss good-bye. Wife: now go and get her. Back to the motel room. Jailed Britten transforms into the shot person in the motel room.

Suit Britten is in an office with Harper. Britten to Harper: what happened to your shoe. Silver Saddle Motel. Edward Mundt has been reserving rooms all over town. to Harper: how long have you known Castle before you shot him in the head. Harper to Britten: I'm sorry, Michael. Britten pulls a gun on Harper, but puts it back. Detective James and Hartwicke from Internal Affairs take Harper away. to Mike: I've got a lot of questions about the last couple of days. Britten talks to Evans. I'm on a time machine. Evans: you finally realize that this is life. This is an enormous step. Invest fully in one real life, rather than dividing yourself between two. Are you saying you were having a dream while you were dreaming. The world with Hannah was a dream. Hannah is gone. Evans: when you go home tonight, what do you expect to see. Hurdles all the way down. Then Evans is frozen in time. A door opens to a bedroom. Britten walks through and the door closes. Britten is now in a tee shirt and pants, in a house. His son Rex appears. It's 8:30. Hannah his wife appears. Are you all right? I'm perfect.
End of series.

Microsoft prevails over Walker Digital

The result:

After the district court construed the disputed claim terms of asserted U.S. Patent No. 6,349,295 (’295 patent), it granted Microsoft’s motion for summary judgment of non-infringement and entered final judgment in favor of Microsoft. Walker Digital appeals the district court’s constructions of several related claim terms. For the reasons set forth below, we affirm the district court’s judgment.

Newman's dissent on obviousness in HYON case

Within Judge Newman's dissent:

The Board held that a person of ordinary skill would have expected to combine aspects selected from the Zacha- riades and Kitamaru processes. As to which aspects to select and combine, the only guidance comes from Hyon, for the prior art contains no “apparent reason to combine the known elements in the fashion claimed by the patent at issue.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The Board reasoned backward from the Hyon method, to hold that since Kitamaru cross-linked prior to extending fibers and films, it was obvious to modify Zacha- riades by slightly cross-linking the bulk polymer prior to molding. (...)

The Board’s suggestion that it was obvious to perform the method that neither Zachariades nor Kitamaru per- formed nor suggested, is supported solely by the teaching in Hyon’s patent. See In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) (“It is impermissible to use the claimed invention as an instruction manual or ‘template’ to piece together the teachings of the prior art so that the claimed invention is obvious.” (quoting In re Gorman, 933 F.2d 982, 987 (Fed. Cir. 1991)); see also Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1138 (Fed. Cir. 1985) (“The invention must be viewed not with the blueprint drawn by the inventor, but in the state of the art that existed at the time.”).

When the technologic field is mature, apparently small changes that produce unexpected results or improved prop- erties are of heightened significance. Nothing in the record suggests that a person of ordinary skill would have foreseen that Hyon’s method of slight radiation cross-linking followed by heating and compression deformation would produce the described benefits. See In re Gartside, 203 F.3d 1305, 1314 (Fed. Cir. 2000) (“the Board’s decision must be justified within the four corners of th[e] record”). (...)

Life Technologies, Inc v. Clontech Laboratories, Inc., 224 F.3d 1320, 1326 (Fed. Cir. 2000), “[r]easonable expectation of success is assessed from the perspective of the person of ordinary skill in the art. That the inventors were ultimately successful is irrelevant to whether one of ordinary skill in the art, at the time the invention was made, would have reasonably expected success.” See also In re Vaeck, 947 F.2d 488, 493 (Fed. Cir. 1991) (“[T]he reasonable expectation of success must be founded in the prior art, not in the appli- cant’s disclosure.”).

Wednesday, May 23, 2012

Arnaud de Borchgrave and plagiarism

"Rhodium Nights" season finale on May 23

The deceased victim got a lethal overdose of scopolamine. The victim had silicone breast implants, and the serial number was tracked. Maggie Murphy is the victim. There is a videotape. 1PP wants the District Attorney's office to handle the investigation. Cragen: we play our cards close to the vest.

"Clayton Hannigan " notes that the Secret Service had to escort guests from the party. Clarissa toys with "Nick Amaro." Bart Ganzel is the booker for escorts such as Clarissa. Cassidy, an undercover cop, punches Amaro. Amaro to Cassidy: you and Ganzel were cutting out just as we got there; someone tip you off? Ganzel's lawyer noted Ganzel was contracted to provide entertainment for the bachannal. Anya Solar flew back to Colombia, 6 hours after Maggie died. Anya used to work for Delia Wilson. Clarissa to Amaro: I think you need a friend. Olivia figures that Ganzel is going to go after Delia Wilson. Olivia and Amaro interview Delia at a farm, where Delia is bottle-feeding a goat. Cragen gets photos put under his door, which show him with another woman (actually on a case). Then a former governor ends up dead, with his pants unzipped but on backwards.

The ex-governor's assistant is interviewed. The ex-governor was getting a massage when he died and was naked. Governor Fletcher was with his Asian masseuse. He had 200 mg of an erectile drug in his system, and scopolamine. Yuko Sakura says the governor was already dead and naked. Marvin Exley, lawyer, comes in to defend Iris, another assistant. Iris declines his representation. Iris informs on Delia. Olivia and Amaro arrest Delia. Bail is set at 2 million. Exley put up his own townhouse for bail. Exley notes she has avoided arrest for last ten years. Exley: walk away little people. Clarissa talks to Amaro about Maggie getting caught. Amaro gives Clarissa his card. Cragen wakes up in bed with blood on his hand and a dead girl in the bed. Episode ends.

CAFC vacates its April 2010 opinion in Caraco case

In Caraco, the US Supreme Court reversed the CAFC, and noted “text and context of the [counterclaim] provision demonstrate that a generic company can employ the counterclaim to challenge a brand’s overbroad use code.” See also

(1) This court’s opinion of April 14, 2010 is vacated, the mandate of this court issued on August 5, 2010 is recalled, and the appeal is reinstated.(2) The motion is granted to the extent that Novo Nordisk’s response is due May 24, 2012.

Tuesday, May 22, 2012

Amyris as example of first-mover disadvantage?

As Adam Lesser of Gigaom writes, Amyris serves as a great example of the “first-mover disadvantage” that is inherent in renewable technologies. Unfortunately, all of the companies listed above have different microbes producing different products in different technology platforms. So the last company to reach commercial scale will have little to learn from the mistakes of its peers, except perhaps humility. (...) Both companies [Amyris and KiOR] have a projected schedule of production. Amyris demonstrated that may be more of a liability than expected. One slip will result in pushing production projections further into the future and the market equivalent of a time-out. Looking at the numbers, I just would not feel comfortable investing in these companies, either.

IPBiz notes that in the pharma area, Lipitor was a great example of a non-first mover success in the area of statins. Because of the divergence in technologies among the biofuels company, Amyris is not such a great example of "first mover disadvantage," because it is not clear "who" the first mover is in the absence of defining "which" technology. The concept of "peers" is not well defined. For example, what would Joule have to learn from the technology of Solazyme. related to the conversion of sugars?

Maxxwell adds: Companies should be wary of making future predictions, such as becoming cash-flow positive in year 201X, because Mr. Market is about fed-up with the industry.

Organic Seed Growers, et al., v. Monsanto

CAFC reverses BPAI in inter partes re-exam 95/000,355

Because the Board erred both in reversing the examiner’s rejection of representative claim 1 as obvious and in affirming the examiner’s allowance of claims 20–33 as patentable, we reverse.

The technology concerned a scooter. The CAFC noted the issues:

During reexamination, the Examiner rejected claim 1 of the ’674 patent as anticipated by Song and obvious over Handong in view of Song. The Examiner found that Song discloses all the limitations of claim 1, including both “a supporting arm frontwardly extended from said driven portion of said twister member” and “a safety wheel which is rotatably mounted to a free end of said supporting arm to support a front portion of said scooter body and prevent said scooter from being flipped over” at issue in this appeal.In particular, the examiner found that the front end of the tricycle’s base plate in Song meets the “support- ing arm” limitation. The examiner then held claims 20– 33 to be patentable because the safety wheel in Song was not attached in the same position or manner as in claims 20–33 and the claimed features have not been shown to be predictable variations of claim 1.

The BPAI had reversed the examiner:

The Board reversed the rejection of claim 1, holding that Song did not clearly disclose the “supporting arm” of claim 1, noting that while Song disclosed safety wheels attached to the tricycle base plate, it did not disclose the means of attachment. The Board also found that Song Figure 1, read in light of the disclosure in the written description, could not anticipate alone because no portion of the tricycle body base plate is an “arm.” The Board held that the combination of Song and Handong would result in a scooter with two safety wheels, raised off the ground, and attached to the base plate, necessarily lack- ing the “supporting arm” limitation required for claims 1 and 20–33. PlaSmart appealed the Board’s decision to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A).

Of drawings as prior art:

We also reject PlaSmart’s argument that each draw- ing in a prior art reference must always be viewed in isolation from the rest of a reference. Our precedent has held that drawings can be used as prior art, without referring to the surrounding description, only if the prior art features are clearly disclosed by the drawing. See, e.g., In re Wagner, 63 F.2d 987, 986–87 (CCPA 1933) (“While it is true that drawings may not always be relied upon for anticipation of a later application, it is also true that, if a drawing clearly suggests to one skilled in the art the way in which the result sought is accomplished by a later applicant, it is immaterial whether the prior pat- entee’s showing was accidental or intentional.”) (internal citations omitted); see also In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972) (“[W]e did not mean that things patent drawings show clearly are to be disregarded.”); In re Seid, 161 F.2d 229, 231 (CCPA 1947) (“[A]n accidental disclo- sure, if clearly made in a drawing, is available as a refer- ence.”).

KSR was invoked as to claim 1:

“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). In other words, when there exists a finite number of identified, predict- able solutions to a known problem, a combination that results in “anticipated success” is likely the product not of innovation, but of ordinary skill and common sense. Id. at 421. That is the case here.

The concept of a "common sense alternative design choice"was invoked:

The decision to attach the Song safety wheel directly to the twister member instead of the body would have been a common sense alternative design choice and reasonably obvious to one of ordinary skill in designing a safety feature to prevent tipping of the Handong scooter. Such a modification is nothing more than a predictable use of prior art elements (universal wheels in contact with the ground in front of the twister member) to address a known problem (stability), and would thus have been obvious. See KSR, 550 U.S. at 417. We therefore reverse the Board’s holding that claim 1 would not have been obvious over the prior art.

The CAFC disagreed with both the examiner AND the BPAI as to claims 20-33:

Because claims 20–33 add only minor, predictable variations to claim 1, we agree with PlaSmart that those claims would have been obvious as well. Accordingly, the Board’s decision is reversed.

As a final tally, the CAFC agreed with the examiner as to the obviousness of claim 1, and disagreed with both the examiner and the BPAI on everything else.

JEFFREY SONNABEND was the attorney for Plasmart, the winner in the case.

Like the examiner, the Board found that the ’211 specification “contains a ‘well-written summary of college level optical physics courses and includes many of the basic equations and physical parameters taught in any electrical or optical engineering curriculum,’” but ultimately failed to make “a connection between the discussed theory and the structure recited in the pending claims that would enable the person having ordinary skill in the art to practice the invention.”

Of the dispute

Hillis argues that, under In re Marzocchi, 439 F.2d 220, 223 (CCPA 1971), the specifications presumptively comply with section 112’s enablement requirement, and that the examiner and the Board did not accept the truth or accuracy of the respective disclosures without stating sufficient reasons for doing so. Hillis’s reliance on Marzocchi, however, is misplaced. Marzocchi states that a “disclosure which contains a teaching of the manner and process of making and using the invention in terms which correspond in scope to those used in describing and defin- ing the subject matter sought to be patented must be taken as in compliance with the enabling requirement of the first paragraph of § 112 unless there is reason to doubt the objective truth of the statements contained therein.” Id. (emphasis omitted); see also Manual of Patent Examination Procedure (“MPEP”) § 2164.04 (8th ed., rev. 6, Sept. 2007). Here, the enablement rejections are based upon the lack of information “teaching . . . the manner and process of making and using the invention,” not a determination on the truthfulness of information that was disclosed. The rule of Marzocchi is simply irrelevant to the examiner’s and the Board’s enablement rejections.

AND

Thus, Hillis argues, when combined with the teachings of the prior art, the ’211 application enables the entirety of claim 1. “Although knowledge of one skilled in the art is indeed relevant, the novel aspect of an invention must be enabled in the patent.” Auto. Techs. Int’l, Inc. v. BMW of N. Am., Inc., 501 F.3d 1274, 1283 (Fed. Cir. 2007). In other words, “[i]t is the specification, not the knowledge of one skilled in the art, that must supply the novel aspects of an invention in order to constitute adequate enablement.” Genentech, Inc. v. Novo Nordisk, A/S, 108 F.3d 1361, 1366 (Fed. Cir. 1997). Here, even considering the knowl- edge of a skilled artisan, the specification does not enable.

The Wands factors were discussed:

As the MPEP states, “it is not necessary to discuss each [Wands] factor in the . . . enablement rejec- tion.”MPEP § 2164.04.Rather, the rejection “should focus on those factors, reasons, and evidence that lead [to] the [conclusion] that the specification fails to teach how to make and use the claimed invention without undue experimentation.” Id. (emphasis omitted). Although the examiner did not specifically cite the Wands factors, and the Board did not expressly identify the factors upon which it relied, it is evident that both the examiner’s analysis and the Board’s analysis were based on the factors most relevant to this case, that is, the lack of “direction or guidance presented” by the inventor, and the “absence of working examples” sufficient to connect the discussed theory to the recited claims. Wands, 858 F.2d at 737.

The concept of a prima facie case of enablement arose:

Hillis also argues that examiner failed to make a prima facie case for a lack of enablement. We have re- cently explained that the PTO meets its initial burden of setting forth a prima facie case by “adequately ex- plain[ing] the shortcomings it perceives so that the appli- cant is properly notified and able to respond.” In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (alteration in origi- nal) (internal quotation marks omitted). For an enable- ment rejection, the PTO must “set[] forth a reasonable explanation as to why it believes that the scope of protec- tion provided by that claim is not adequately enabled by the description of the invention.” In re Wright, 999 F.2d 1557, 1561-62 (Fed. Cir. 1993); see also MPEP § 2164.04. Here, the examiner’s rejections plainly indicated that more information on how to implement the invention was needed in order to close the gap between the “summary of college level optical physics” and the “broad reference to

some possible intended uses.” 2011-1401 J.A. 196-97; 2011-1402 J.A. 107-08. We find that the examiner rea- sonably explained the shortcomings of the ’211 and ’227 applications in a manner that was sufficient to allow Hillis to respond.

Of evidence:

Unless a Board decision includes a new ground of rejection, an appellant may not provide additional evi- dence in a request for rehearing. 37 C.F.R. § 41.52(a)(1). Hillis’s claims that the Board’s decisions presented new grounds of rejections are without merit. Accordingly, we find no error in the Board’s refusal to consider Hillis’s evidence presented for the first time in Hillis’s requests for reconsideration.

Tough talk from Gevo about Butamax

The claims in the '328 Patent [US 8,178,328 ] are virtually identical to the claims in Butamax's earlier-issued 7,851,188 Patent ('188 Patent) which were recently rejected and declared unpatentable by the U.S. Patent and Trademark Office during reexamination. The '328 Patent issued from a child application of the '188 Patent and purports to cover engineered isobutanol-producing microorganisms."

Like Butamax's '188 Patent, the technology described in the '328 Patent was invented by others and repeatedly described in journal publications dating back to the 1960s. We will request reexamination of the '328 Patent using similar arguments and are extremely confident that the outcome will be the same."

Monday, May 21, 2012

CAFC in IN RE BAXTER INTERNATIONAL, INC.

Baxter appealed an obviousness finding from a re-examination proceeding. The CAFC noted Because the Board did not err in determining that those claims would have been obvious to one of ordinary skill in the art, we affirm.

From the decision:

First, as recounted above, the Board expressly considered our decision in Fresenius. More fun- damentally, the PTO in reexamination proceedings and the court system in patent infringement actions “take different approaches in determining validity and on the same evidence could quite correctly come to different conclusions.” Swanson, 540 F.3d at 1377 (quoting Ethi-con, 849 F.2d at 1428). In particular, a challenger that attacks the validity of patent claims in civil litigation has a statutory burden to prove invalidity by clear and con- vincing evidence. Id. (citing 35 U.S.C. § 282); see also Microsoft Corp. v. i4i Ltd., 131 S. Ct. 2238, 2242 (2011). Should the challenger fail to meet that burden, the court will not find the patent “valid,” only that “the patent challenger did not carry the ‘burden of establishing inva- lidity in the particular case before the court.’” Swanson, 540 F.3d at 1377 (quoting Ethicon, 849 F.2d at 1429 n.3 (internal citations omitted)). In contrast, in PTO reex- aminations “the standard of proof—a preponderance of the evidence—is substantially lower than in a civil case” and there is no presumption of validity in reexamination proceedings. Id. at 1378.

This case thus illustrates the distinction between a reexamination and a district court proceeding. In Fresen- ius, we upheld the district court’s grant of judgment as a matter of law because the patent challenger failed to meet its burden to prove invalidity by clear and convincing evidence—it “failed to present any evidence . . . that the structure corresponding to the means for delivering dialysate limitation [in claim 26], or an equivalent thereof, existed in the prior art” and did not identify “the structure in the specification that corresponds to the means for delivering dialysate” or compare the identified structure to those structures present in the prior art. Fresenius, 582 F.3d at 1299. Ultimately, we concluded that the clear and convincing burden of proof in the “means plus function” context “cannot be carried without clearly identifying the corresponding structure in the prior art.” Id. at 1300.

In contrast, during the reexamination, the examiner sufficiently identified the corresponding structure recited in the ’434 patent and identified the structures in the prior art such that a reasonable person might accept that evidence to support a finding that claim 26 is not patentable under a preponderance of the evidence standard of proof. Moreover, in addition to relying on the CMS 08 Manual, the examiner based those rejections on prior art references that were not squarely at issue during the trial on the invalidity issues, such as Lichtenstein and Thomp- son. See Fresenius, 2007 WL 518804, at *7–8 (discussing the Cobe C3 Manual, the CMS 08 Manual, the Sarns 9000, and the Seratron System). Thus, because the two proceedings necessarily applied different burdens of proof and relied on different records, the PTO did not err in failing to provide the detailed explanation now sought by Baxter as to why the PTO came to a different determina- tion than the court system in the Fresenius litigation.

Lest it be feared that we are erroneously elevating a decision by the PTO over a decision by a federal district court, which decision has been affirmed by this court, the following additional comments must be made. When a party who has lost in a court proceeding challenging a patent, from which no additional appeal is possible, provokes a reexamination in the PTO, using the same presentations and arguments, even with a more lenient standard of proof, the PTO ideally should not arrive at a different conclusion.

Judge Newman, in dissent:

Today, reexamination is part of the tactical armory of litigators. However, throughout this history, including the current legislative proposals to make reexamination more useful as a less costly alternative to litigation, we have uncovered no suggestion that reexamination is intended to deprive a final judgment of the full faith and credit atten- dant upon final judgments. We have found no hint that reexamination of the question of patentability is intended to override judicial resolution of the question of patentability.

Sunday, May 20, 2012

"60 Minutes" on May 20, 2012: questioning the value of higher education

The first story was by Morley Safer on Peter Thiel who talks about the questionable value of higher education. Each year, Thiel pays 20 students $100,000 to drop out of school. If you have plans to do something very different, Thiel urged students to think a lot about it. Thiel described certain college administrators as the subprime lenders of the current educational bubble. College tuition has quadrupled since 1980. Thiel says a degree has little more than snob value. The average plumber makes as much as the average doctor. One needs to have the right idea at the right time at the right place. Thiel noted Harvard does a good job of picking winners and should not get credit for the later success of its students. Safer interviewed a professor (Vivek Wadhwa?) with appointments at Duke and Stanford. He said ideas are a dime a dozen and you need an education to learn how to make an idea into an invention. IPBiz notes one could ask the Wright Brothers about that! Of Thiel fellows, Jim Danielson electrified a junk yard Porsche with an electric motor. Another winner [Sujay Tyle of Harvard] was into biofuels [specifically from cellulose]; another [Eden Full of Princeton; IPBiz could not find published US patent applications for Full or to Roseicollis Technologies] into solar panels. [for a list of fellows, see INAUGURAL CLASS OF 20 UNDER 20 THIEL FELLOWS] Thiel noted many fellows have started businesses. Thiel himself has undergrad and law degrees from Stanford. Thiel noted if he went to Harvard, he would have been on a track to be an investment banker. Methusalah Foundation. Airylabs is struggling. When you try to do something new, likely you will fail. Thiel: I don't enjoy being contrarian. It's more important to be right than contrarian. Utopian off-shore nation states. [Of Eden Full, see also http://www.sunsaluter.com/ and separately note from Full: That’s why I’m going to take two years off from Princeton to figure out how I want to do this. I do have every intention of returning to Princeton. from http://www.smartplanet.com/blog/pure-genius/the-19-year-old-innovator-revolutionizing-solar-energy-systems/6436 ]

Second, was "Hard Cases" by Lara Logan on work by Dr. William Gahl at the NIH's Undiagnosed Disease Program, who studies the hardest of the undiagnosed diseases. A rare disease impacts fewer than 200,000 people Dr. Gaul created the program 4 years ago. Dr. Gahl has a budget of 3.5 million. Single nucleotide polymorphism (SNP). The program can only take 150 - 170 cases per year. There is a triage process. 40% of the accepted cases are children.

Steve Kroft on Roger Waters, a creator behind Pink Floyd. The Wall originally composed in 1979. The walls that exist between human beings. Waters: the work is the reward. Waters: there was a reason left Pink Floyd in 1985. The Dark Side of the Moon. July 21, 1990 in Berlin. Waters took The Wall on tour in 2010. Waters noted that compared to looking after a two year old child, doing a rock & roll tour is an absolute dawdle.

***
Anderson Cooper on "Final Resting Place." A lot of funeral homes are owned by big businesses. There are more than 40,000 active cemeteries in the US. Burr Oak Cemetery in the Chicago area. A father died in 1978. In 2009, Cook County officials found that head stones and remains were being removed, and plots re-sold. Josh Slocum looks into issues. Since 1984, Funeral Homes have been regulated by the FTC. These rules do NOT apply to cemeteries. Mount Olive Cemetery was discussed. Since 2006, Mount Olive owned by Service Corporation International [SCI]. Double sold plot. Dignity Memorial/Eden Memorial Park. One plot may cost $25,000. Michale Abenotti, lawyer. Menorah Garden Cemeteries in Florida. Star of David Cemetery in Ft. Lauderdale. Paul Elvig, spokesman for the industry. 6,500 burials per day. Bobby Rush HR 900.

Bob Simon on Tel Aviv. How not to worry about tomorrow. Tel Aviv as an island of sanity. Simon on NY analogy: you know New Jersey does not have missiles pointed at you. Last days of Pompeii?
More bars than synagogues in Tel Aviv. Vivien Levy is a columnist for a newspaper. Bad taste to bring up politics at a party. Joke: a starving artist does not have a plaee to starve. Instant messaging. Freescale semiconductor. Floyd's Blog. Jewish mother as origin of innovation? Lonely Planet: Tel Aviv third hottest city in the world. Tel Aviv as a bubble, living only for the present.

CBS Sunday Morning on May 20, 2012

Charles Osgood introduced the stories for May 20, 2012. A special edition on islands, ports of call. Susan Spencer does the cover story, on people living alone (no man is an island). Second, Tracy Smith on whistling on the island of La Gomera. Lee Cowan does man-made islands, drilling rigs. Fourth, Martha Teichner on the thousand islands and the thousand island dressing. Richard Schlesinger, Mo Rocca, Serena Alschuler. Jeff Glor does the headlines for May 20. Earthquake near Bologna. Libya bomber died of cancer. Chinese dissident in New York. Obama in Chicago for NATO summit. Mark Zuckerberg married Priscilla Chan. Preakness. Last triple crown winner Affirmed. Solar eclipse 5pm Pacific Time. Alberto. Weather: winning day along the coasts.

Osgood prefaces the Spencer story with Donne quote. Spencer started with Garbo, Thoreau, Hughes. The rise of "living alone" by Erich Kleininberg. 32.7 million Americans live alone. This is like finding an island. One is the loneliest number. Seattle, San Francisco, Denver, Cleveland have about 40% households with one person. New Yorker Kate Bollick is interviewed. "What Me Marry." 34.5% of alone people are 65 or older. Jeff Ragsdale is interviewed. There is nothing worse than being sick by oneself. Jeff posted fliers all over NYC about wanting to talk. Book: Jeff, One Lonely Guy. He got over 70,000 responses. 347-469- 3173 . Roughly one out of seven Americans lives alone.

Tracy Smith on the El Silbo of La Gomera of the Canary Islands. Shouting can be heard 500 meters, but whistling can be heard for 3000 meters. Words and phrases are defined by altering the pitch. Joaquina Mariana is interviewed. Now, cell phones. The local government requires taking of classes on whistling. Because it's our thing. The cell phone generation is learning to tweet.

Serena Alschuler does the island of Campobello. Roosevelt was treated by islanders as an equal . Christopher Roosevelt is interviewed. The park there is the only international park in the world. Every day at 3pm tea was served. In 1921, Roosevelt suffered an attack of polio at Campobello. Stephen Smart, current mayor of Campobello, is interviewed. Roosevelt returned to Campobello in 1933.

Lee Cowan does offshore oil rigs in the piece "Roughing It." Average income $80,000 per year. "Biker Mike" is a roustabout who is interviewed. Hercules 173 is owned by Chevron and is about 3 miles off the coast. One shift is noon to midnight. Keith Sullivan is the cook. Chuck Bradley has worked 20 years; two weeks on; two weeks off. Michael Broome: you have to have a special heart for it. Temp at 106deg with mud pumps. Pictures of Deep Water Horizon. Brandon Scroggins: that was worst case scenario.

Lucy Kraft on a ghost island off the coast of Japan. On top of a coal mine. Timochi Kobata became a coal miner in 1961. Hive like community at Hachima. Brian Burke Gaffney discusses the tight conditions of the island. After 80 years, coal mine closed in 1974. Tourists now visit: how fast prosperity can turn to dust. Once resources depleted, lifestyle collapses.

Mo Rocca does islands famous in history. Key West is first. Then, 70 miles to the west is Garden Key, and Fort Jefferson. After war of 1812, US built sea forts; Jefferson, started in 1846, is the largest. 16 million bricks. There is only one entrance. Dr. Samuel Mudd's cell is shown. Dr. Mudd treated yellow fever victims, and obtained a pardon. Construction stopped in 1889. The fort, on a sand bar, is sinking. [The allusion to a crocodile in the moat, made in the preface, did not appear in the main story.]

Osgood talks about pirates, the signature spirit of the Caribbean. Seth Doane on making rum. The French island of Martinique. Agrico. Molasses is distilled into rum. Ed Hamilton is interviewed; Brian's in Milwaukee. Most rum is made from molasses. Bacardis in Puerto Rico. Joe Gomez is Bacardis master blender. In 1862 Cuba. Gomez showed vats of molasses with the yeast. Once ferments for about a day; distilled, then aged. Bacardis finest rum sells for $2000 per bottle.

Nancy Giles on a cooks tour of kitchen islands. Kitchen islands by J.D. Cuchina. Urban Homes. Elizabeth Cromley at Northeastern University. In the 1970s kitchen island gains traction. Johnny Gray looked for perfect place (sweet spot) for kitchen island. Andrew Solomon: place that is warm and friendly. "Graph of Happiness" maxes out between 7 and 10pm. More than 50% of newly constructed homes have kitchen islands.

"How's he doing" is Rita Braver interviewing Ed Koch. When Koch took over, NYC was on verge of bankruptcy. Koch cleaned up Times Square. Koch won three terms in office, but lost on his try for the fourth. He wrote books and was a tv judge. Still does a radio call-in show. The Queensboro Bridge now named for Koch.

An island of exile. Mo Rocca on Elba. Napolean exiled there, and would be emperor there. Giuseppe Bertolini discussed the flag with three bees. 1937 movie: Conquest. One can view Corsica. Napoleon left Elba. Lost at Waterloo. Exiled to St. Helena.

Richard Schlesinger of 48 Hours visits West Virginia. Green Bank, WVa. A radiofrequency quiet zone. Protects a radiotelescope. Radio detection truck hunts down rogue radio signals. Limit the radio waves. Diane Skow moved here from Iowa was convinced radiowaves making her sick. NRAO: The Robert C. Byrd Green Bank Telescope, or GBT, is the world’s premiere single-dish radio telescope operating at meter to millimeter wavelengths. Its enormous 100-meter diameter collecting area, its unblocked aperture, and its excellent surface accuracy provide unprecedented sensitivity across the telescope's full 0.1 - 116 GHz operating range, a larger frequency (energy) range than any other telescope.

Thousand Islands by Martha Teichner. Eric Roberts did a movie. 1864 islands in St. Lawrence River. In late 1800s, thousand islands became fashionable. George Boldt, manager of Waldorf-Astoria. Shane Sanford. Louise and George Boldt took a cruise. Oscar of the Waldorf served it. Story 2 in Clayton, New York. Paper disintegrated. Sophia made up recipe. May Irwin. Mary Dylan at Thousand Island Inn. Story 3. Blackstone Hotel in 1910. 200 million dollars worth of Thousand Island Dressing bought per year.

About Me

I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.